State v. Litteral Ct Al

• Decision Date: 05 June 1947
• Docket Number: No. 218.,218.
• Citation: 43 S.E.2d 84,227 N.C. 527
• Parties: STATE. v. LITTERAL ct al.
• Court: North Carolina Supreme Court

43 S.E.2d 84

227 N.C. 527

STATE.

v.LITTERAL ct al.

No. 218.

Supreme Court of North Carolina.

June 5, 1947.

Appeal from Superior Court, Wilkes County; H. Hoyle Sink, Judge.

Ralph Vernon Litteral and Marvin Claude Bell were convicted of the capital felony of rape, and they appeal.

No error.

Criminal prosecution under bill of indictment which charges the capital felony of rape.

The evidence for the State tends to establish the following facts:

Prosecutrix lives at Pleasant Hill, a settlement on the Traphill road about four miles from the center of Elkin. On the evening of August 23, 1946 she and two girl friends, accompanied by three boys, went to a watermelon feast in or near Elkin, arriving about 7:00 p.m. They returned to the cab station at Elkin, a bus stop, too late to "catch" a bus. They then went to a movie. They returned to the bus stop and the three girls boarded a bus about 11:05 p.m. to go home. Prosecutrix lived about 100 yards beyond the end of the run of this bus where it turned around and returned to town. The girls noticed a car with its lights off trailing the bus. Prosecutrix's two girl companions left the bus sometime before it reached the end of its run. The bus, having reached its terminus, drove into a side road to turn around. The trailing car turned on itslights and passed, went up the road and turned around between the bus and the home of the prosecutrix. It drove up beside prosecutrix who had left the bus and started home. One of the two occupants got out. She started to run into a neighbor's yard. The driver called to the other, "Grab her." He chased her, grabbed her, put his hands over her mouth and pulled her into the car. During this time she screamed and attempted to get free but was thrown down to the floor of the car and the one holding her sat upon her and held his hand over her mouth. The car drove off and she was blindfolded. She asked them what they were going to do to her, and one replied that they were going to assault her. They tried to make her drink liquor. Some distance away she was taken out of the car and the driver left for a while. During this time she attempted to get away. The car returned and she was again placed therein. Thereafter she was criminally assaulted several times by each of the occupants and was subjected to other treatment too vile and repulsive to repeat. She was likewise beaten and one of the occupants said that he was going to cut his initials on her leg and made a mark several inches long. Finally they drove into Tennessee, put the prosecutrix off in a corn field, threatened to kill her if she looked around, and drove away. She went to a home nearby about 7:00 a.m. where she was treated, given food, and later carried to town and placed on a bus for home. There was evidence of other occurrences on the trip it is unnecessary to repeat. There is likewise evidence in the record amply sufficient to identify the two defendants as the occupants of the car and the assailants of the prosecutrix.

Thereafter the defendants were apprehended by Federal and State officials and were first held by the Federal authorities on a charge of kidnapping. The judge of the Middle District entered an order 6 November 1946 releasing the defendants to the sheriff of Wilkes County for trial in the State court on the charge of rape.

While the defendants were in the custody of the officers they made statements in the nature of confessions. The statements were in the main in substantial accord with the testimony of the prosecutrix.

When the case came on for trial in the court below the defendants moved to quash the bill of indictment (1) for that, the Federal court had no right to release the defendants to the State court, and therefore the State court had no jurisdiction to try the defendants on the capital felony charged; and (2) for that no women were summoned to serve at the term of court at which they were placed on trial. The motion was overruled.

The defendant Bell offered no testimony. The defendant Litteral offered testimony tending to show that he is of such low mentality that he is incapable of distinguishing right from wrong. This evidence was sharply controverted by testimony offered by the State. There was a verdict of guilty of rape as charged in the bill of indictment as to each defendant. Judgment of death was pronounced as to each and defendants appealed.

Harry M. McMullan, Atty. Gen, and T. W. Bruton, Hughes J. Rhodes, and Ralph M. Moody, Asst. Attys. Gen, for the State.

Trivette, Holshouser & Mitchell and Hayes & Hayes, all of North Wilkes-boro, for defendant Bell.

Fred S. Hutchins, of Winston-Salem, for defendant Litteral.

BARNHILL, Justice.

The defendants advance no argument and cite no authority to sustain their contention that the court below was without jurisdiction. The defendants, it is true, were first held by the Federal authorities on the charge of kidnapping. It may be that so long as they were in the custody of Federal officials the State was powerless to proceed. Even so, there is no provision of law, so far as we can ascertain, which denied the district judge the right to surrender the custody of the defendants to the State authorities for trial in the State court. It was a matter of comity and courtesy existing between the courts of the two jurisdictions and rested in the sound discretion of the district judge.

The State court, having obtained custody, of course had jurisdiction to proceed. State v. Harrison, 184 N.C. 762, 114 S.E. 830; State v. Davis, 223 N.C. 54, 25 S.E.2d 164; State v. Inman, 224 N.C. 531, 31 S.E. 2d 641; 14 A.J. 435.

Likewise the contention that the absence of women on the jury panel constitutes a fatal defect in the proceeding is without merit. The constitutional amendment adopted in 1946 merely makes women eligible for jury service. Before it becomes of practical application it needs must be implemented by legislation prescribing qualifications and manner of selection of women for jury service. See Chap. 1007, Session Laws, 1947. The panel was drawn and summoned and the grand jury was selected and impaneled before the effective date of the amendment and the bill was returned the day thereafter. Furthermore, so far as the record discloses the petit jury was selected without the use of any of the twenty-eight peremptory challenges available to defendants. Thus they obtained a jury acceptable to them. State v. Koritz, N.C, 43 S.E.2d 77.

The exception is without merit for the further reason the defendants are not of the same class or sex as those claimed to have been wrongfully excluded. Hence no discrimination is made to appear. State v. Sims, 213 N.C. 590, 197 S.E. 176; Mc-Kinney v. State of Wyoming, 3 Wyo. 719, 30 P. 293, 16 L.R.A. 710; United States v. Chaplin, D.C, 54 F. Supp. 682.

Ballard v. United States, 329 U.S. 187, 67 S.Ct. 261, cited and relied on by defendants, discusses the method of selecting Federal petit and grand juries in States in which women are eligible for jury service. It is not controlling here.

Prosecutrix testified that she was kept from her home all night, maltreated, misused, criminally assaulted, left alone and in distress in the nighttime in a corn field in Tennessee. Her testimony was challenged and its credibility put at issue by the pleas of not guilty and by extended cross-examination. Hence the testimony of her mother that prosecutrix did not return home that night and she, the witness, so reported to the officers and the radio station was competent in support of her testimony. State v. Brabham, 108 N.C. 793, 13 S.E. 217; State v. Bethea, 186 N.C. 22, 118 S.E. 800; State v. Brodie, 190 N.C. 554, 130 S.E. 205; State v. Scoggins, 225 N.C. 71, 33 S.E.2d 473; State v. Walker, 226 N.C. 458, 38 S.E.2d 531.

To like effect was the testimony of the witnesses from Tennessee who rendered her assistance, fed her, and helped her return home. Her call for help and exclamation, "Oh, God, will somebody help me, " was a spontaneous utterance prompted by and tending to show her need of help which was a result of the wicked acts of those who had kidnapped her. This testimony tends to complete the picture of what happened that night. Exception thereto cannot be sustained. State v. Hawkins, 214 N.C. 326, 199 S.E. 284, and cited cases; State v. Draughon, 151 N.C. 667, 65 S.E. 913.

The prosecutrix also made a statement to the officers which was reduced to writing and signed by her. Although she, while on the stand, did not refer to this writing, there was other evidence tending to identify it as as her written statement. The court admitted it as corroboratory testimony and was careful to instruct the jury fully as to the nature of the testimony and the manner in which it should be considered. It was competent for the purpose for which it was offered and was properly admitted.

It may be that there are some parts of this written statement which do not tend to corroborate the witness. Even so, the defendants made no motion to strike or to exclude such parts of the statement as might not be competent for that purpose. They were content to enter a general objection to the statement as a whole. This did not require the presiding judge to sift the writing and eliminate therefrom any part thereof which in his opinion might not tend to corroborate. If the defendants objected to the statement in part and not as a whole they should have so indicated by proper motion or exception. State v. English, 164 N.C. 497, 80 S.E. 72; State v. Wilson, 176 N.C. 751, 97 S.E. 496; State v. Shepherd, 220 N.C. 377, 17 S.E.2d 469; State v. Britt, 225 N.C. 364, 34 S.E.2d 408.

One Reavis, witness for the State, noticed the two defendants about 5:00 or 5:30 of the afternoon preceding the assault, near the cab station. They were on a 1940 Ford coach. He saw them again about 10:30 that night. He noted on his cab book a description of the automobile and the number of its license plate. On the stand he testified concerning the facts disclosed by...